The New Human Trafficking Bill Needs To Rethink Raids, Rescues And Rehabilitation

On 30 May this year, while releasing the draft Trafficking in Persons (Prevention, Protection and Rehabilitation) Bill, 2016, Maneka Gandhi conceded that it has plenty of room for incorporating nuances. In making this point, she gave a highly pertinent example: "If a woman has been trafficked 15 years ago and is now a part of the sex trade, will she considered be a trafficked victim or not?" This is a critical point that perhaps baffles most governments and creates arguments amongst activists over their ideological and moral positions.

Theresa Kerketa, 45 year old, poses for a picture at her residence on the outskirts of New Delhi November 2, 2012. Kerketa was working as a maid was rescued by Bachpan Bachao Andolan (Save the Childhood Movement), a charity which rescues victims of bonded labour. There are no reliable figures for how many people are trafficked for domestic servitude. The Indian government says 126,321 trafficked children were rescued from domestic work in 2011/12, a rise of almost 27 percent from the previous year. Activists say if you include women over 18 years, the figure could run into the hundreds of thousands. Picture taken November 2, 2012. To match Feature INDIA-TRAFFICKING/ REUTERS/Mansi Thapliyal (INDIA - Tags: SOCIETY POVERTY)

On 30 May this year, Maneka Gandhi, Minister of Ministry of Women and Child Development, released a draft bill on human trafficking -- the Trafficking in Persons (Prevention, Protection and Rehabilitation) Bill, 2016. While releasing the bill, she conceded that the draft has plenty of room for incorporating nuances:

"We have to build in nuances in this bill -- for instance, if a woman has been trafficked 15 years ago and is now a part of the sex trade, will she considered be a trafficked victim or not? These are nuances we need to figure out."

This is a critical point that perhaps baffles most governments and creates arguments amongst activists over their ideological and moral positions.

The draft bill does not contain anything on rescue protocols. Under the current law, whether in the Bonded Labour Act, Immoral Traffic Prevention Act (ITPA) or the Indian Penal Code or Criminal Procedure Act, the police can conduct raids of any premises based on its information or intelligence, or suspicion of illegal activity, including running of a brothel, child labour, sale or purchase of a child or woman for purposes of exploitation, etc. Section 8 of the ITPA also allows the police to arrest sex workers soliciting clients in a public place.

THE PROBLEM WITH RESCUE OPERATIONS

In the last two or three decades, "rescue operations'" have been mired in controversy and debate.

Consent, argue activists, should be at the heart of rescues, and the police should be authorised to rescue only those persons who wish to be rescued.

The most common form of "rescues" (of trafficked victims in prostitution) conducted by the police is through mass raids. The practice is for the police to barge into a brothel and either arrest or "rescue" all the women inside. The brothel members are treated in one of two ways by the police: as accused (brothel managers and others helping to run the operation) or victims (those who have been trafficked into prostitution).

The law does not discern between an adult who may be in a trafficked situation (servitude, debt bondage, forced prostitution) and an adult who may not be (she may or may not have been trafficked into prostitution at some time but may not be currently living in confinement, debt bondage or be forced into prostitution).

Sex workers' rights activists argue that there is rampant abuse of power by the police, who often use threats to extort from sex workers. This may also take the form of bribes taken to allow brothels to continue running. Health workers who work for HIV prevention also argue that the exploitation of sex workers by the police creates a state of panic at all times in such communities, making it difficult to make positive health interventions. Ultimately, this legal provision makes some sex workers seek protection from politicians and other socially/ politically powerful people, and this also comes at a price of a different kind (political patronage).

The poor rehabilitation services and forced incarcerations in "protection homes" are a strong argument against the State conducting rescues of women or children who may not want to live in shelters or even return back to their families in villages for reasons of poverty, fear of stigma and violence. Consent, argue activists, should be at the heart of rescues, and the police should be authorised to rescue only those persons who wish to be rescued.

Research shows that when a trafficked person participates and takes the initiative in her own rescue, she recovers from trauma much better.

Still, all parties concur that children or minors should not be allowed to be in prostitution, and their consent is immaterial -- this is in alignment with all national and international law. However, in practical terms, in the course of rescue operations, it is not always possible to tell if someone is an adult or not. While the best source of verification would be the person herself/ himself, the trafficked individual may be in fear (of her captors) and may not be able to reveal her age.

Sex workers' rights groups argue that self-regulatory mechanisms are the best ways for communities to prevent child prostitution. However, upon interception of such cases in the last decade, these boards or regulatory mechanisms have not worked with the police to prosecute offenders and have sent children or women back to their families, and let go of the offender who trafficked them in the first place.

ALTERNATIVES TO RAIDS

Research shows that when a trafficked person participates and takes the initiative in her own rescue, she recovers much better. In 2014, Plan International commissioned a study, which found that survivors who were rescued arbitrarily without being prepared often found the rescue process violent, and resisted services for recovery or healing.

This struggle and tensions between the police, abolitionist groups (activists who work to abolish prostitution based on the premise that those engaged in sex work are victims of failed dependency on the system, and that commercial sexual exploitation is a systemic form of exploitation like feudalism), the sex workers' rights groups and the State, have led to evolution of newer practices in rescue.

Use of information and intelligence: NGOs such a Rescue Foundation, International Justice Mission, Freedom Fund and Justice and Care, use a network of informers and decoys to detect a trafficked person. The police have been known to use such methods to create their own information sources to monitor law and order, or more organized crimes such as drug trafficking. The 228 AHTUs (anti human trafficking units) established in states and districts would require more manpower and resources and a systemic push if they are to be expected to strengthen their intelligence in cities and trafficking hotspots of use of trafficked persons.

Rehabilitation services should be extended to any survivor of trafficking, without prejudice.

Putting pressure on traffickers: A somewhat successful strategy that has been observed in West Bengal and Andhra Pradesh is when upon registering of a complaint from the family of the trafficked person, the police creates pressure upon the local accused trafficker (the one who had taken the person from her/his family for work or eloped with her) or their family, and pressurized them to bring the victim back. The malpractice rife in this approach is that the trafficker often agrees to return the victim only in lieu of the complainant withdrawing the case against them. Even the police have been known to impose this condition on the complainants in order to reduce their investigative workload.

Railway vigilance: The Indian government has also decided to focus on putting the mandate of stronger vigilance on the railways. This has shown results at times -- unaccompanied children or large groups of minors being taken somewhere by one or two persons have been interrogated and discovered to be victims/perpetrators of trafficking.

NECESSARY CHANGES IN THE DRAFT LAW

At the time of this critical law being framed (see the full draft here), it is essential that the law makers, in cognizance of the above concerns, take five measures:

1. Read down section 8 of the ITPA that allows for arrest of sex workers for solicitation.

2. The mandate should be put on the police to invest in stronger intelligence for identification of trafficked persons. The role of AHTUs to be clarified and determined in the process. Lessons learnt from good practices of NGOs (Rescue Foundation, IJM, Freedom Fund and Justice and Care) to be incorporated in the law. The law may refer to a rescue protocol or develop one in parallel.

3. The law should focus on non-institutional forms of assistance and care for trafficked survivors. It should not force everyone to go to a shelter or protective home. A person trafficked 15 years ago, but no longer living in servitude, should have options to claim assistance for retribution (punishment for her/his trafficker), recovery services (health assessment, treatment and care) and so on.

4. Ban "mass-raids".

5. Rehabilitation services should be extended to any survivor of trafficking, without prejudice. The draft law, in chapter 7, sections 11 and 12, speaks about rehabilitation and equates it with social reintegration. The bill also indicates that to receive rehabilitation services, the person must have been institutionalized and rescued by the police. Given that ALL survivors of trafficking attempt at escaping from trafficked situations, and many succeed -- either by themselves or with help of allies including their clients -- this provision or restriction will prevent them from accessing rehabilitation services and opportunities that they may require to recover their health, overcome stigma and build new skills to overcome poverty.